Valdosta Daily Times

State News

July 13, 2013

City spars with national gun control group

ATLANTA — A tiny Georgia city and a national gun control group are facing off in a legal battle over a city ordinance requiring gun ownership, with the constitutionality of the law and broader messages about gun rights taking center stage.

The Brady Center to Prevent Gun Violence in May filed a federal lawsuit against Nelson, a city of roughly 1,300 residents about 50 miles north of Atlanta, saying a recently adopted ordinance requiring heads of household to own a gun and ammunition is unconstitutional.

“We definitely think this law is misguided and unconstitutional in Nelson and anywhere else where it’s passed,” lawyer Jonathan Lowy of the Washington-based Brady Center said in a recent interview. “But it’s also important to send a message to other jurisdictions around the country that might be inclined to pass similar misguided, unconstitutional laws.”

The Nelson City Council adopted the Family Protection Ordinance on April 1. The measure requires every head of household to own a gun and ammunition to “provide for the emergency management of the city” and to “provide for and protect the safety, security and general welfare of the city and its inhabitants.” The ordinance exempts convicted felons, those who can’t afford a gun and those who suffer from certain physical or mental disabilities, as well as anyone who conscientiously objects to owning guns because of their beliefs or religious doctrine.

City leaders and the police chief, who’s the only police officer in town, said during the meeting when the ordinance was passed that they had no intention of enforcing it. It was meant to warn would-be burglars and to send a message to the federal government about gun ownership.

“I don’t think there was ever any intention of the city of Nelson to enforce the ordinance,” David Archer, a lawyer for the city, said. “I think it was a political statement that they made.”

City Manager Brandy Edwards confirmed Friday that no one has been charged under the ordinance.

The law’s sponsor, Councilman Duane Cronic, said at the time that he believed the ordinance would make the city safer, likening it to signs warning of alarm systems that people put in their yards.

And at a time when President Barack Obama and some states were pushing for more restrictive gun laws after the Connecticut elementary school massacre in December, Nelson was showing its support for the right to bear arms.

City officials referred all questions on the lawsuit to Archer, who said he was hired by the city’s insurance company to defend Nelson against the lawsuit.

GeorgiaCarry.Org, a group that seeks to protect the rights of its members to own guns, has filed court papers seeking to join the legal fight in support of Nelson.

Lamar Kellett, who lives in Nelson and is a member of the Brady Center, spoke against the ordinance at the City Council meeting and said it would have no effect on people like him who didn’t own a gun and didn’t want one. But several weeks later he went out and spent nearly $700 on a handgun and ammunition, according to the Brady Center’s lawsuit.

Kellett said he doesn’t qualify for the law’s exemptions because he doesn’t conscientiously oppose gun ownership — he just doesn’t want to own one.

“How does a citizen like myself know that that will be true in the future or even next week?” Kellett said this week of the council’s decision not to enforce the law.

Lowy, the Brady Center lawyer, agreed: “There’s no guarantee that a law that’s on the books will not be enforced,” he said.

But that’s precisely what has happened for more than three decades in Kennesaw, an Atlanta suburb that passed a law requiring gun ownership in 1982 but has never enforced it. Cronic, sponsor of the Nelson ordinance, said it was inspired by Kennesaw’s law, and the wording is identical. The Brady Center has not filed suit against Kennesaw.

“We may or may not sue Kennesaw in the future,” Lowy said, citing the timing of Nelson’s ordinance as a factor in the decision to sue. He also noted that the town of Nucla, Colo., was inspired by Nelson to pass a similar ordinance in May.

Ultimately, the Brady Center may have the Constitution on its side because the law could be interpreted as a violation of First Amendment free speech rights, said Emory University law professor Michael Perry, a constitutional law expert.

“For the same reason you can’t tell the citizens they’ve got to own and display the American flag, you can’t tell American citizens they have to own guns and keep them on the premises,” he said.

The government can’t require people to do something unless there’s some plausible argument that it serves a legitimate government objective, Perry said. While deterring crime could be considered a legitimate objective, it would be hard for the city to prove the ordinance accomplishes that goal, he said.

Both sides are gathering documents and making procedural court filings. Archer said he hopes to reach a settlement.

“I think if it is clarified that it was never intended to be enforced, I’m thinking that might move toward some possible resolution of the case,” he said.

Lowy said the Brady Center is open to talking with Nelson about a proper resolution, but he declined to comment on what an acceptable settlement would look like.

Still, in Nelson, where the most common crime is minor property theft and the occasional burglary, the measure remains popular.

“I am still firmly in favor of the law,” resident Lawrence Cooper said. “I believe that if everyone had guns crime would disappear.”

 

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